THIS JUST IN … State Water Board sets date to start Part 2 of California Water Fix hearings; issues ruling letter

PART 2 of the hearing will resume at 9:30 a.m. on January 18, 2018

From the California Water Fix Hearing Team at the State Water Resources Control Board:

This ruling grants the Department of Water Resources’ (DWR) August 3, 2017 request to establish a schedule for Part 2 of the hearing before the State Water Resources Control Board (State Water Board) on the water right change petition for the California WaterFix Project. A number of protestants have called for the indefinite delay of Part 2 pending the issuance of a Record of Decision (ROD) by the U.S. Bureau of Reclamation (Reclamation) pursuant to the National Environmental Policy Act (NEPA), and further consultation between Reclamation and the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) pursuant to section 7 of the federal Endangered Species Act (ESA).

As discussed below, we conclude that a continuation of the hearing is not legally required, and that the public interest weighs in favor of proceeding with the hearing, taking into consideration: (1) the substantial information available concerning the potential effects of the project, (2) DWR and Reclamation (collectively petitioners) have the burden of demonstrating that each element necessary for approval of their petition has been met, (3) the risks and costs of postponing for an indefinite period the conclusion of the evidentiary hearing, and (4) either the hearing or the State Water Board’s decision on the petition can be re-opened if necessary and appropriate to consider new information. We also conclude that the project description is adequate to allow the parties to participate meaningfully in Part 2, but petitioners are directed to clarify whether any proposed operating criteria have changed through the section 7 consultation process.

Although we have concluded that it is in the public interest to proceed with the hearing, we shared protestants’ expectation that the NEPA and ESA processes would be complete at this juncture, and we did not anticipate that USFWS and NMFS would defer a more detailed level of review of certain elements of the project to a future consultation process. As a consequence, petitioners may need to supply more information than anticipated through the hearing process in order to meet their burden of proof without the benefit of a ROD and complete consultation under section 7 of the ESA. Similarly, protestants may need additional time to develop their cases-in-chief. We have taken this into consideration in establishing an appropriate schedule for Part 2.

The schedule for Part 2, including a tentative pre-hearing conference date, is set forth below. This ruling also establishes important deadlines for participation in Part 2, including deadlines for the submission of supplemental Notices of Intent to Appear and the submission of written testimony and exhibits. The parties are advised to read this ruling carefully, especially those parties who did not participate in Part 1 and may not be familiar with the State Water Board hearing procedures. In addition, all of the parties are expected to have read the Notice of Public Hearing and Pre-Hearing Conference (Hearing Notice), including Enclosure D, and our previous rulings in this hearing. The Hearing Notice and rulings are posted on the State Water Board’s webpage at: http://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/california_waterfix/ruling_notices.

This ruling also addresses the scope of Part 2, limits on evidentiary objections, Deirdre Des Jardins’ request to conduct a rulemaking proceeding to establish “appropriate Delta flow criteria” pursuant to the Sacramento-San Joaquin Delta Reform Act of 2009, and the City of Stockton’s request to move sur-rebuttal exhibits into evidence.

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